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Filming private parts without prior consent

Filming on our mobile phones has become a common everyday practice and past time for many. But depending on what you film and what you capture can mean the difference between a happy snap or a criminal charge.

As filming a person and capturing or attempting to capture a private part is an offence.

Recently our firm defended a client charged with 10 counts of film private parts without consent and 1 count of possess child abuse material.

We were able to represent to the Police prosecution to have 5 of the charges withdrawn and/or rolled into one offence. Along with a charge on what is known as a form 1 offence. Whereby our client was charged but not convicted of that offence.

After a detailed sentencing submission to the Court our client was able to secure a 3-year non-custodial community corrections orders. Whereby he must be on good behaviour and continue with his mental health treatment program.

This result shows that deterrence go hand in hand with rehabilitation for the Court.

As a sentence of the caliber will allow our client to proceed and continue with his mental health treatment providers to deter him from ever committing any like offences.

Thus, even though community safety is paramount in the Court’s consideration when determining sentences, rehabilitation is an integral part of community safety considerations for the Court.

The elements of the offences are as follows: –

Film private parts without consent is found in section 91L of the Crimes Act 1900 (NSW).

There are 5 elements to this offence being: –

1. You filmed a person’s private parts and captured it on film video or photo; and
2. You did it to obtain sexual gratification or arousal, or you did it to enable another person to obtain this gratification or arousal, and
3. A reasonable person would expect the person’s private parts could not be filmed, and
4. The other person did not consent, and
5. You knew that the person did not consent to being filmed

‘Private parts’ is defined as a person’s genital or anal area.

The maximum penalty for filming private parts is 2 years imprisonment and/or $11,000. This is reserved for the worst category of offender.

There is also an aggravated element to this offence being where the person filmed was a child under 16 years of age, or the offender changed the fabric of a building to assist committing the offence. The maximum penalty for aggravated filming private parts is 5 years imprisonment.

An attempt to do any of the above is still considered the same as committing the offence and subject to the same penalties.

Possess child abuse material is categorised as any material that depicts or describes a child (person under 16 years of age) being neglected/abused or in a sexual pose.

Possess child abuse material is found in section 91H of the Crimes Act 1900 (NSW)

The elements are as follows: –

1. You had in your possession material that constitutes child abuse material; and
2. You reasonable knew that you had this material in your possession; and
3. The material is of the kind that a reasonable person would find offensive considering the circumstances; and
4. The material depicted or described a child

 

• as a victim of torture, cruelty or physical abuse, or
• A child engaging in a sexual pose or sexual activity (whether or not in the presence of other persons), or
• A child in the presence of another person who is engaging in a sexual pose or sexual activity, or
• The private parts of a child.

 

Whether a reasonable person would regard the material offensive after considering all the circumstances, the court takes into account: –

• Ordinary standards of decency and morality by reasonable adults, and
• Any literary, artistic or educational merit of the material, and
• Any journalistic merit of the material being as a record or report of a matter of public interest, and
• The general character of the material (including whether it is of a medical, legal or scientific character).

The offence is liable to imprisonment for 10 years.

A large range of material can be child abuse material as was in our client’s case. Where the material in question was children in swimsuits and exercise wear.

 

Therefore, this case shows two things: –

1. Community safety considers rehabilitation as part of keeping our communities safe, and not just imprisonment; and
2. Child abuse material and the definition encompasses a range of material and can include children in normal every day clothing in certain poses that may be deemed sexual.

 

If you or someone you know has been charged with a criminal offence, or has an employment law dispute contact Rep-Revive Criminal & Employment Lawyers® for a initial free consultation on (02) 9198 1996.